R v Harvey Ca89/01
[2001] NZCA 408
•19 June 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA89/01 |
THE QUEEN
V
TAI ERNEST HARVEY
| Hearing: | 19 June 2001 (at Auckland) |
| Coram: | Blanchard J Fisher J Potter J |
| Appearances: | J W Clearwater for Appellant K Raftery for Crown |
| Judgment: | 19 June 2001 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
The appellant was convicted on one count of aggravated robbery and one count of wounding with intent to cause grievous bodily harm. He received a sentence of six and a half years imprisonment for each offence, to be served concurrently. He now appeals his sentence on the grounds that it was manifestly excessive and that it was inappropriate in a certain respect for the sentencing Judge to increase the starting point from seven to eight years on the basis that the offence was committed while the appellant was on parole.
Facts
On 27 September 2000, while out on parole and after an application had been for his recall had already been made because of his failure to report to the Community Probation Service, the appellant telephoned Auckland Cooperative Taxis. Using a false name, he requested that a taxi be sent to the house directly opposite his address. When the taxi arrived and no one came outside, the complainant driver went to the front door of that house. The appellant then ran towards the complainant with a knife saying “Give me all the money. If you don’t give it I will kill you”.
The complainant managed to run to his car and get into the driver’s seat. However, the appellant stopped him from closing the car door and stood over him with the knife. The complainant gave him $100 of notes from his pocket. But when the complainant said there was no more money, the appellant started striking the complainant’s chest with the knife. The complainant tried to stop him, but was stabbed in the upper arm and stomach. The complainant managed to break free, but the appellant struck him again in the back with the knife. When the complainant ran down the road yelling for help, the appellant chased him. The Judge considered that the attacks ended only when the appellant realised that the Police had been called. He then fled the scene but was soon arrested. As a result of the incident, the complainant received four stab wounds to his back, stomach and upper arm, which prevented him from working for two weeks and caused him ongoing discomfort.
After the arrest on 27 September the appellant was remanded in custody. The application to recall the appellant was granted on 26 October and the appellant’s status was thereafter, and until sentencing in the present matter on 12 December 2000 that of a sentenced prisoner. This meant that the period between 26 October and 12 December, approximately 1½ months did not qualify to be taken into account under s81 of the Criminal Justice Act 1985 – see subs(8) which provides that the usual allowance for time on remand does not apply in respect of any time during which an offender is detained in a penal institution while subject to a full-time custodial sentence.
Sentencing
On the basis of this Court’s decision in R v Mako [2000] 2 NZLR 170, the Judge took a starting point of seven years. She identified a number of aggravating factors. The Judge took account of the appellant’s 41 previous convictions, although none involved violence. But she said that the most important feature was that the present offending occurred only two months after the appellant was released on parole from a two year imprisonment sentence for robbery. The Judge noted also that the appellant’s actions had involved a degree of pre-planning, although such planning was not of a significant nature nor organised over a long period of time. Another aggravating feature was the extended nature of the attack.
Mitigating factors were taken into account also. The Judge accepted counsel’s submissions that the appellant was remorseful. She took account also of the appellant’s guilty plea, although it was not entered until after depositions were finished and the complainant had been called to give evidence at them. The Judge referred also at the appellant’s unfortunate personal circumstances. He had a “sad background”, suffering both social and educational disadvantages. The appellant’s offending was sparked by alcohol, although this had a negative feature because it worsened the appellant’s high risk of reoffending, as described in the pre-sentence report.
Submissions on behalf of the appellant
Counsel for the appellant, Mr Clearwater, responsibly recognised the serious nature of the convictions and confined his submissions to a single point. He relied on the fact that, after the appellant was arrested and remanded in custody for his present offending, the application for his recall was granted and the appellant’s status reverted to that of a sentenced inmate. Counsel submitted that the Judge had failed to make allowance for the period of 1½ months during which no remand credit was available. This meant, he said, that the appellant was effectively punished twice for committing the offence on parole. Counsel accepted that it was in other respects proper for the Judge to regard the fact that the appellant was on parole as an aggravating factor and to increase the sentence to allow for that matter.
Submissions on behalf of the respondent
Mr Raftery, for the Crown, noted that in Mako (at para [62]) this Court said that the fact that the offender was on parole may warrant some increase. He accepted that the Judge had not adverted to s81(8) but suggested that she may well have had it in mind in arriving at the overall reduction of 1½ years. The difference was so slight as not to justify interference with the sentence.
Decision
In the tariff case of Mako, Gault J, who delivered the judgment of the Court, referred specifically to the robbery of taxi drivers (at para [57]):
These offences, generally at night, commonly involve violence to victims who, by their occupation are vulnerable. Other road users also may be endangered. Where a weapon is presented or physical violence is employed, though no serious injury may be caused, and money is taken a starting point of between 4 and 5 years would be appropriate.
This description is directly applicable to the present case. But here the appellant went even further by stabbing the complainant in the back, stomach and upper arm. Moreover, the appellant’s violence went well beyond that associated with the robbery. After it was clear that the taxi driver had no more money, the appellant carried out a prolonged attack, even going so far as to pursue the complainant down the road, desisting only when he realised the Police had been called.
We agree with the Judge below that seven years was an appropriate starting point. It was proper for the Judge then to take into account the fact that the offending occurred while the appellant was on parole. That is a substantial aggravating factor additional to the others which have been mentioned.
A longer sentence on this account reflects the Court’s denunciation of the appellant’s preparedness to offend after being released earlier than his final release date – something done because he had convinced the parole authority that he was not likely to commit any further offence after release and while still subject to his sentence. There was an understanding that the privilege of early release would not be abused.
Nevertheless, where there has been a recall before sentencing for a subsequent offence, the position arising under s81(8) ought to be taken into account so that there is not an element of double punishment which results in practice in an excessive sentence.
We are not however persuaded that we would be justified in interfering with the present sentence merely because the Judge has not specifically referred to this question. The period in issue is minimal in the context of an appropriate point of eight years before taking into account mitigating factors and an eventual sentence of 6½ years. There was more than ample allowance for the only significant mitigating factors, the plea of guilty and the expression of remorse. If the Judge had fixed a sentence of 6 years 8 months it would not have been disturbed as excessive. No injustice to the appellant has resulted even if the Judge has not turned her mind to the question of s81(8).
The appeal is therefore dismissed.
Solicitors
Crown Solicitor, Auckland
0
0
0